THIS TRIAL CHAMBER of the
International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 ("the International Tribunal"),

BEING SEISED of a "Prosecution
Motion for Protective Measures for Witnesses" filed
by the Office of the Prosecutor ("Prosecution") on
24 March 2005 ("Motion"), in which the Prosecution
requests:

the extension of protective measures ordered in
Prosecutor v. Jovica Stanisic and Franko Simatovic1
with respect to two witnesses, identified as B-235
and C-058 ("Prior Protected Witnesses Application"),
and

with respect to one witness, identified as SS-220,
for whom protective measures are sought for the
first time ("First Instance Witness Application")

that the Prosecution be relieved of its obligation
under Rule 66(a)(i) to disclose the full prior
statement of the witness and related exhibits
and be permitted to provide a version which is
redacted to protect the witness identity,

that the witness be assigned a pseudonym corresponding
to the Prosecution witness number already assigned
to the witness,

that full disclosure of the witness identity,
statement and related exhibits be delayed until
30 days prior to the expected date of his testimony,

that any third party provided with confidential
information in preparation of the defence be required
to sign a non-disclosure agreement, and

the extension of the time limit for service of
Rule 66 (A)(i) material that is the subject of the
Motion until after the decision of the Trial Chamber
on the Motion.

NOTING that the Defence of
Momčilo Perišić (“the Accused") has
not filed any response to the Motion,

NOTING that the Prosecution
submits that delayed disclosure to the Accused and
non-disclosure to the public is justified for these
witnesses because (1) of the extreme nature of the
danger and risk they face, should it become known
that they will testify in these proceedings, (2) the
witnesses will testify in relation to matters bearing
directly on the criminal responsibility of the Accused,
matters that relate to high level operations of government
agencies, or perpetrator groups identified in the
indictment, and (3) in those instances where disclosure
to a third party is necessary for the preparation
of the defence, the Prosecution submits that a non-disclosure
agreement balances the need of the defence to adequately
prepare their case with the need to protect witnesses,

CONSIDERING that Article 20
(1) of the Statute of the International Tribunal ("Statute")
requires the Trial Chamber to ensure that proceedings
are conducted with full respect for the rights of
the accused and due regard for the protection of victims
and witnesses, and that Article 21(2) of the Statute
entitled the accused to a fair and public hearing,
subject to Article 22 of the Statute, which requires
the Tribunal to adopt measures for the protection
of victims and witnesses,

(F) Once protective measures have
been ordered in respect of a victim or witness in
any proceedings before the Tribunal (the "first proceedings"),
such protective measures:

(i) shall continue to have effect
mutatis mutandis in any other proceedings before
the Tribunal (the "second proceedings") unless and
until they are rescinded, varied or augmented in accordance
with the procedure set out in this Rule; but

(ii) shall not prevent the Prosecutor
from discharging any disclosure obligation under the
Rules in the second proceedings, provided that the
Prosecutor notifies the Defence to whom the disclosure
is being made of the nature of the protective measures
ordered in the first proceedings.

NOTING that, in Stanišić, the
Trial Chamber ordered (1) that the two witnesses be
identified by pseudonyms, (2) that their statements
and related exhibits be disclosed to the Defence in
redacted form, (3) that, unless otherwise ordered
by the Trial Chamber, their identities and unredacted
statements and related exhibits be disclosed no later
than 30 days prior to the anticipated start of the
trial, and (4) that the material relating to these
witnesses not be disclosed by the Defence to third
parties, except to the extent necessary for the preparation
and presentation of the Defence case, in which case
non-disclosure agreements be obtained prior to releasing
the material to them,2

CONSIDERING therefore that,
since pursuant to Rule 75(F)(i), the protective measures
ordered in that case shall continue to have effect
in this case mutatis mutandis, the Prosecution’s
request that identical protective measures be ordered
in this case with respect to these witnesses is superfluous,

CONSIDERING further that, pursuant to Rule
75(F)(ii), the appropriate action for the Prosecution
to take would have been to disclose the statements
of these two witnesses to the Accused, with the statement
identified by pseudonym and redacted to remove identifying
information, and simultaneously inform the Accused
of the existence of the protective measures ordered
in respect of those witnesses,3

CONSIDERING that delayed disclosure
of the identity of a witness to the Defence is governed
by Rule 69 (A) and (C) which provides:

(A) In exceptional circumstances,
the Prosecutor may apply to a Judge or Trial Chamber
to order the non-disclosure of the identity of a victim
or witness who may be in danger or at risk until such
person is brought under the protection of the Tribunal.

[…]

(C) Subject to Rule 75, the
identity of the victim or witness shall be disclosed
in sufficient time prior to the trial to allow adequate
time for preparation of the defence.

NOTING that, in Stanišić,
this Trial Chamber cited with approval the three criteria
set out in the Brđanin Decision that must
be considered when delayed disclosure is requested
under Rule 69(A):

the likelihood that Prosecution witness will
be interfered with or intimidated once their identity
is made known to the accused and his counsel,
but not to the public,

the distinction which must be drawn between
measures to protect individual victims and witnesses
in the particular trial, which are permissible
under the Rules, and measures which simply make
it easier for the Prosecution to bring cases against
other persons in the future, which are not, and

the length of time before the trial at which
the identity of the victims and witnesses must
be disclosed to the accused,4

CONSIDERING that the requirement that the
accused be granted a fair trial dictates that the
Trial Chamber should only grant protective measure
where it is properly shown, in the circumstances of
each individual witness, that the protective measures
sought meet the requirements of the Rules, as elaborated
in the jurisprudence of the Tribunal,5

CONSIDERING that the Trial
Chamber is satisfied, on the basis of the information
contained in the Motion and its Annexes, that the
Prosecution has established that exceptional circumstances
exist to merit the protective measures requested with
respect to the First Instance Witness Application,

CONSIDERING that, consistent
with the general practice of this Trial Chamber, the
Prosecution will be required to disclose to the Defence
the identity and full statement of this witness 30
days prior to the anticipated start of the trial,

PURSUANT TO Rules 54, 66,
69, 75, and 127 of the Rules,

HEREBY ORDERS AS FOLLOWS:

UNANIMOUSLY:

the Prosecution First Instance Witness Application
is granted;

the witness shall be identified by pseudonym and
referred to as SS-220;

the time for disclosing Rule 66(A)(i) material
concerning the First Instance Witness is extended,
the Prosecution shall disclose the statement and
related exhibits of the witness in redacted form
within seven days;

the Prosecution shall disclose the full and unredacted
statement and related exhibits of the witness no
later than 30 days prior to the anticipated start
of the trial in this matter, unless otherwise ordered
by the Trial Chamber; and

the Defence shall not disclose the material relating
to this witness to third parties except to the extent
directly and specifically necessary for the preparation
and presentation of the defence case, and shall
obtain non-disclosure agreements from any third
party as a precondition for release of the material
to them.